Marriage…And the ‘D’ Word

October 20, 2015

Summer was an especially lovely and rainbow filled season this year with the Supreme Court decision on marriage equality. I celebrated and cried with the best of them, but now I find myself thinking not only of the joyous coming together of couples, but also about the realities of separation and divorce.

I grew up in Massachusetts, which has had marriage equality since 2004. It was precisely around that time that my moms were separating. Marriage had never been an option to them and so I didn’t tell many people about their separation because it just didn’t sound as important as divorce. A close friend, whose heterosexual parents were divorcing at the same time, received an outpouring of support and counseling. Since I couldn’t claim the “d” word, I stayed quiet. I sought support from other teens who I had met for the first time just months before at Family Week in Provincetown, MA and who like me, had LGBTQ parents. In fact, immediately after my parents sat me down to tell me they were separating, I went upstairs and signed in to AIM (I’m dating myself here) to get advice and comfort from these new friends.

I was extremely fortunate to have parents who remained committed to co-parenting and because I had been second-parent adopted a few years before, both of my parents were legally recognized. Still, I think about marriage equality and all the many legal uncertainties that remain for our families. A marriage certificate does not guarantee that each person will be a legally recognized parent, nor does it necessarily make separating any easier.

To better understand the legal implications of marriage, divorce and parentage, I turned to attorney Joyce Kauffman, an LGBTQ family law expert and a member of our Ask the Experts forum. Attorney Kauffman is a fantastic resource for families and regularly answers questions through the forum.

We all know that loves makes a family, but what exactly makes a legal parent? In most states, statutes establish a presumption of parentage, which means that the spouse of a married woman is presumed to be the parent of any child born in the union. Both parents’ names automatically go on the birth certificate. In some states, statutes also establish that a child born to a married woman through artificial insemination is recognized as the child of the woman and her spouse. And therefore, post marriage equality, for lesbian couples, many states will include both mothers on the birth certificates of children born into the marriage. All of this is good, but not the end to the issue. It is important to note that married gay male couples do not enjoy this same privilege since neither one of them is giving birth to a child. Gay male couples having biological children through gestational surrogacy must obtain either a parentage order from the court or do a second parent adoption.

According to Kauffman, “Marriage creates a legal relationship between the adults, so if you had children before you were married (and did not do a co-parent adoption), getting married will not create legal parentage.”

Even if the names of both mothers are on a birth certificate, it still may not be enough. Kauffman explained that while a birth certificate is an official record, it is NOT a judgment and may not be enough to secure parental rights everywhere. Only a judgment from the Court is entitled to “full faith and credit,” i.e., recognition in all other states.1 “While you remain in the state that issued the birth certificate, you are probably relative secure in your legal parentage, but if you travel internationally or to another state that does not recognize the presumption, or the biological parent moves to another state that does not recognize the presumption, your parentage may be subject to challenge.”

In legal terms, it comes down to this, “In order to truly secure parentage, it is essential to do a second parent adoption. It is also very important for unmarried couples to do second parent adoptions in order for the non-biological parent to be recognized as a parent,” says Kauffman.

When it comes to relationships, Kauffman suggests that that marriage and divorce provide security for LGBTQ families. “Unmarried couples will have a more difficult time establishing any right to a division of assets unless assets are jointly owned or the parties have an enforceable contract between them. Unmarried couples who have children must establish legal parentage in order to protect their children from the loss of a parent in the event of separation. All too often, legal parents are successful in preventing non-legal parents from continuing relationships with children they have raised.”

In the end, Kauffman believes that protecting a child’s relationships with the people they know as parents is simply the right thing to do. I couldn’t agree more.

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1. Although it is important to note that Alabama has recently refused to recognize a legitimate second parent adoption from another state. Hopefully, this decision will be challenged and overturned because, as Kauffman states, it is most certainly unconstitutional.